MR & MS MERCHANTANDMS SIERRAANDDIRECTOR-GENERALDEPARTMENT OF COMMUNITY SERVICES
[2002] FamCA 401
•20 May 2002
Family Law Act l975
IN THE FAMILY COURT
OF AUSTRALIA
AT BRISBANE
No. BR 1533 of 2002
BETWEEN:
MR & MS MERCHANT
AND
MS SIERRA
AND
DIRECTOR-GENERAL
DEPARTMENT OF COMMUNITY SERVICES
BEFORE THE HONOURABLE JUSTICE BELL
THE 7TH DAY OF JUNE, 2002
REASONS FOR JUDGMENT
Delivered at: Brisbane.
Date: 7th June, 2002.
Date of Hearing: 20th May, 2002.
Appearances on hearing: Mr North of senior counsel appeared on behalf of Mr & Ms Merchant.
Ms Sierra appeared on her own behalf.
Mr Green of counsel appeared on behalf of the Department of Community Services.
Ms Cowper, solicitor, appeared as the Child’s Representative.
This is an application which came before me on the 20th May 2002. I have been assisted by the submissions of North S.C. for the applicant parents and by Green of counsel for the Department of Community Services, New South Wales. I have been assisted by the presentation by both counsel of Summaries of Arguments. At the risk of being declared a plagiarist, I will adopt Mr Green’s submissions in relation to the facts and incorporate into these my Reasons for Judgment his paragraphs 1 to 9 inclusive, save that paragraph 9 should be amended by deleting Ms Merchant and inserting therein Ms Sierra (the child’s biological mother).
“1.The child the subject of the Application, [B Merchant] (formerly [Sierra]) was born [in]1987.
2.On 4 February 1987, [B] appeared before the … Children’s Court … on a complaint of incompetent guardianship. On 18 March 1987, [B] was, by order of the … Children’s Court …, committed to the care of the Minister and became a State Ward.
3.On 13 November 1989, Young J of the New South Wales Supreme Court made orders granting access to [B] by Ms [Sierra].
4.On 20 November 1992, Windeyer J of the New South Wales Supreme Court vacated the access orders made by Mr Justice Young with the consent of all parties.
5.In 1991, the Department of Community Services decided to commence adoption proceedings without parental consent pursuant to s.32(1)(e) of the Adoption of Children Act 1965. This followed occasions where Ms [Sierra] had indicated her consent to [B’s] adoption but had subsequently withdrawn her consent. On 2 September 1992, the Minister as [B’s] guardian, consented to her adoption. Subsequently, on 17 November 1992, Ms [Sierra] gave her consent to [B’s] adoption. Prior to the adoption, the Respondent Ms [Sierra] gave her consent to [B’s] adoption. Prior to the adoption, the Respondent Parents agreed to continue to send regular exchanges of photographs and information about [B] through the Adoption Services Branch of the Department of Community Services.
6.On 21 December 1992, Cohen J of the Supreme Court of New South Wales made an order for adoption of [B] in favour of [Mr & Ms Merchant] (“the Respondent Parents”). The Court did not make any orders about access, direct or indirect, “as an incident of” the adoption order.
7.Since the making of the adoption order, there have been various applications made by Ms [Sierra] and requests by Ms [Sierra] for further contact between her and [B]. The NSW Department’s Adoption Services Branch has handled the exchange of correspondence between [B] and Ms [Sierra]. Contact has been limited to an exchange of information, letters, photographs and gifts. There have been no face to face meetings or telephone calls.
8.On 1 February 2002, Ms [Sierra] filed an Application in the Family Court of Australia, Brisbane Registry seeking both interim and final orders for contact with [B], naming the Respondent Parents as Respondents to the Application.
9.On the first return date of that application, 18 February 2002, Registrar Wilkie ordered amongst other things, that a child’s representative be appointed, injuncted Ms [Sierra] from making or attempting to make contact with the Respondents or [B] other than as arranged by the child’s representative, and adjourned the application until a later date. The Respondent Parents are now seeking to review all of Registrar Wilkie’s decisions and raised the question of jurisdiction to make orders that come into effect immediately.”
Whilst this matter was heard in the duty list and took a considerable amount of time, after studying it as closely as I can within the limited time that I have, I am of the opinion that the matter can be succinctly stated as being a question as to whether or not an adoption is an order made under a child welfare law and, if so, is the Family Court prevented from making orders in relation to contact by a person to that child.
May I make it quite clear that is it my opinion (and this has not been suggested to the contrary by either counsel) that the Adoption of Children’s Act (NSW) (the adoption having been made as I have referred to hereinbefore in New South Wales under that Act), is a child welfare act.
Further, I must say that there was faintly raised some question as to whether this Court has jurisdiction in relation to an adopted child. I am of the opinion that the child comes within the definition of a “child of the marriage”. Consequently, this Court has jurisdiction.
As I have said, the only concern that I have is whether or not the Court has the power to order contact or residence of an adopted child or whether its power is prevented by the relevant sections in the Family Law Act. As it stands today, in my opinion, the relevant section would be s69ZK. Some doubt has, however, once again been raised by both counsel as to whether s69ZK is in force and effect since inserted by the Law and Justice Legislation Amendment Act of 1992. The Act required, however, that s69ZK in its entirety would only come into force and effect should the Governor-General by proclamation declare the amendments to that part extend to a specified state. I understand that Queensland has not had the benefit of a proclamation as New South Wales has.
A proclamation was made to extend the amendments to the State of Tasmania and eventually a proclamation was made after the Family Law Reform Act of 1995 which replaced all of those areas with a new Part VII which included the present s69ZK. The proclamation was made in relation to New South Wales but, as I understand, has not been made for Queensland.
I do not believe that whether the provisions of s60H(1) or s69ZF(1), the relevant sections to which I have to refer, are in any way a difficulty in this matter; they being similar save as to s69Z(1)(b). It comes down to this. Is the child in this matter under the care (however described) of a person under a child welfare law? If so, can this Court make an order?
As it has fallen from Green of counsel, he submits that the adoption procedure is a procedure whereby the adoptive parents are clothed with parenthood. Once adopted a child becomes a child of the marriage under the Family Law Act (see s60F) (supra) and he says that it is from the Act that the question of residence and contact flows (see s61B). He says that, as a direct result thereof, it cannot be said that an adoption order precludes the Court from making orders in relation to the adopted child.
I must say that this is somewhat attractive to me. It appears that perhaps there has also been some confusion as to what “care” means. It has been proposed by North S.C. that care means “protection”. I myself am more of the opinion that the word “care” means that there has been an order made by the relevant authority that the child is put into the “care” of some person (i.e. under the old s10 it was the Minister and those people determined therein; under s68 it is extended). It is well known that the Director of children’s services in Queensland in particular, is capable of placing a child who has been put into his “care” into the “care” of another person and that may either be the mother of the child or some foster carer. I do tend to feel that the word “care” as used in the relevant section, whether it be s68 or s69ZK, means that the child is under “care” of the Director or under “care” of a person nominated by the Director for its welfare and not adoption, such care order coming from the Director’s overall authority to protect children who come before him or her by way of the Child Protection Act 1999.
However, accepting for the moment that it may not mean this, the problem that I envisage in North S.C.’s submission is something which Green of counsel has touched upon; that if his submission is correct it means that the Family Court has no power to make orders in relation to any adopted child. This appears to me to be an absurdity.
The golden rule of statutory interpretation (see Gifford Statutory Interpretation) has been described by Lord Blackburn in River Wear Commissioners v Adamson (1877) 2 App Cas 743 at 764 as the following:
“we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification which, though less proper, is one which the court thinks the words will bear.”
As I have said, if in fact North S.C.’s submissions are correct, it means that a court which in effect is the sole repository of the powers in relation to children of the marriage, residence etc. is precluded from making an order in relation to the welfare of a child of the marriage because in this case the adopted child comes within the definition. As I have said I consider that is an absurdity and I must read down the word “care”, if that is the correct use of the word, to mean that it is not to affect the power of this court to make orders in relation to the residence and contact of an adopted child.
I get some support and comfort from the decision of former Chief Justice Gibbs in Re L.S.H.; Ex parte R.T.F. & Anor. (1987) FLC 91-843. The High Court considered the power of the Family Court of Australia exercising jurisdiction under the Family Law Act to restrain the mother of a child and her present second husband from commencing proceedings to adopt the child the mother had with her first husband. At p.76,353-4 Chief Justice Mason, with whom as I understand Wilson, Deane and Dawson JJ agreed, Gaudron J. dissenting, said:
“And if parliament intended that the Family Court had jurisdiction to determine whether a child should remain subject to the regime of custody and access under the Family Law Act or be liable to adoption under State law, one would expect the Family Law Act to have a clear intention to that effect. After all in Australia guardianship, custody and access on the one hand and adoption on the other hand traditionally have been separate and independent regimes, in which the regime of adoption has been immune from interference by courts exercising jurisdiction on matters of guardianship, custody and access. In the absence of a specific statutory provision pointing in a contrary direction, the Family Law Act should be read in accordance with its language as continuing that tradition.”
What I understand from that section of the judgment of the Chief Justice is that adoption is on one hand, and the powers of courts in relation to guardianship, custody and access (as it was then known) is on the other hand, the latter is in the realm and the regime of the Family Court. I can see no way that it could be suggested that the Family Court would not have the power to make orders in relation to a child of the marriage, notwithstanding prima facie it appears as though there may be some restriction upon making orders.
The next sub-section which comes for my consideration is whether or not, if an order is made – and I emphasise IF because I consider that the applicant birth mother has another hurdle to overcome – it would cause her in effect to breach the provisions of the relevant act in New South Wales. She is precluded from attempting to contact the child without either the consent of the Minister or the consent of both adoptive parents.
A somewhat similar set of facts to the present arose in the case of P v P (1994) 181 CLR at 637 which was dealing with the question of sterilisation of a young child. The court generally seized of this matter and considered that should the Family Court allow in that case the parents of the child to proceed with the sterilisation they may be breaching the provisions of the Guardianship Act 1987 NSW.
As I have said, this was a sterilisation procedure, permission for which was sought by the parents which would be contrary to the provisions of state law (supra). It was held by a majority that the Family Court had the jurisdiction to order the carrying out of the sterilisation of a child within the confines of its discretion in s64(1) and that such discretion and operation was not limited by the existence of s35 of the Guardianship Act.
North S.C. submits also that, should the birth mother be entitled to apply for contact to the child under s69ZK(2)(c), then the orders sought in this case would affect the operation of a child welfare law in relation to the child. In P v P it was stated:
“However, the Act does not purport to authorize the Family Court to suspend or override the operation of State laws such as s.35. The Act invests the Family Court with jurisdiction to make orders for the welfare of a child of a marriage. When such an order is made, the intention of the Act is that no State law is to prevent, frustrate or interfere with the operation of the order. Section 109 of the Constitution, not the Family Court, then suspends the operation of the State law.” (My underlining.)
Notwithstanding North S.C.’s endeavours to distinguish P v P, I consider the principles as enunciated in P v P (supra) apply, the application for review must be dismissed.
I have briefly mentioned the fact that I consider that there is a further stumbling block for Ms Sierra, the birth mother, before any application for contact by her could be accepted and adjudicated upon by the court.
Because the birth mother does not come within the provisions of either s65C(a)(b) or (ba) of the Act, she must bring herself within s65C(c), i.e. she must be able to convince the court that she is “any other person concerned with the care, welfare or development of the child”.
The following principles were espoused by Burr J. in Kam v MJR (1998) 24 Fam LR 656 (taken from Headnote):
(i)Any person may file an application for a parenting order, and a parenting order may be made in favour of a person other than a parent (s.64C).
(ii)In order to proceed beyond the mere making of the application, the applicant for a parenting order must demonstrate that they are a “person concerned with the care, welfare or development of the child”. This imposes a threshold test, being a test to be determined on the individual facts and circumstances of each case.
(iii)The degree or strength of the nexus, or concern, with the care, welfare or development of the child is an issue for determination in each case, depending upon the facts and circumstances of each case. The court must regard the best interests of the child as the paramount consideration (s.65E).
(iv)There may well be circumstances where a mere “interest in” or “concern about” the child in question is sufficient to satisfy the threshold test.
(v)Once the threshold stage has been passed, the individual facts and circumstances of the matter again must be viewed in order to determine whether or not a parenting order is appropriate and in the best interests of the child, as would be the nature and form of any such order. It would be unfortunate and is unnecessary (save in exceptional circumstances) to undertake separate enquiries in separate hearings to establish whether or not a person is “concerned with the care, welfare or development of the child” separate from the determination of what might be in that child’s best interests.
(vi)The specific wording of s.65(c) appears to require demonstration of a concern with only one of the issues of care, welfare or development.”
Is the fact that a person is the biological parent sufficient to bring her within the Act? I do not believe the biological mother has any preferred position – the best interests of the child are paramount (see Re C & D (1997) 23 Fam LR 375 at 389). (See also Lindenmayer J. in Hodak v Newman Fam LR 15 wherein his Honour said that the approach adopted by the English Court of Appeal in Re K (1990) 3 All ER 795: “does not represent the state of the law in Australia under the Family Law Act”).
Lindenmayer J. also said that the decisions in In the Marriage of Drew (1993) 16 Fam LR 536; FLC 920360 and Braithwaite v Braithwaite and Stocks:
“Misstate the position under the Family Law Act. In my opinion, it is incorrect, in a custody dispute as between a natural parent and a non-parent, to state that the role of the natural parent is to be ‘preferred’, or to have recourse to a ‘resumption’ that the welfare of a child will best be served by an order in favour of a natural parent.”
After reviewing the authorities, Lindenmayer J. said at 17-18:
“I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the court commences its decision making process in the adjudication of custody disputes. Each case should be determined upon an examination of its own merits and of the individuals there involved.”
Although there is an absence of case law directly on point, it would appear that the nature of the interest that the applicant has in respect to the care, welfare or development of the child must be objectively reasonable, given the applicant’s relationship to the child. The latter consideration is a subjective assessment and the relationship will need to be sufficiently proximate to deem the interest reasonably held. This is a threshold test, and it would seem that in many cases sufficient proximity will be found, but it will later be determined that it is not in the best interests of the child to establish contact. This approach is sustainable by reference to the decision of Burr J. in Kam v MJR (supra), where his Honour held that there may well be circumstances where a mere “interest in” or “concern about” the child in question is sufficient to satisfy the threshold test.
There has been some contact using the New South Wales Director as a conduit until this matter is determined finally. I believe the Director must be the conduit pipe for such limited contact as has been taking place to continue. I will discharge the order for the child representative to be the person responsible.
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